On June 13, 2013, The Hawaii Department of Education came up short, again, in its efforts to blame parents for its own short-comings. In a watershed case, the Ninth Circuit Court of Appeals reaffirmed a longstanding rule that school districts are responsible for adherence to procedural safeguards and can’t blame parents for their own malfeasance. In a unanimous decision against the DOE reversing the United States District Court of Hawaii, a three judge panel agreed with Spencer Clark, a Maui child with autism. The facts of this case don’t really matter. As the Court states, the take-away from this ruling is that “…an agency cannot eschew its affirmative duties under the IDEA by blaming the parents.”

This case is about the seriousness with which school districts must treat the application of the procedural safeguards of the Individuals with Disabilities Education Act (“IDEA”) that are meant to ensure parental participation in the development of an individualized education program (“IEP”) for disabled children. This appeal seeks to reaffirm well-established Ninth Circuit case law that ardently protects the right of parents to participate in the IEP development process. -- Quote from Appellant Doug C.’s Opening Brief.

Time and time again, the DOE’s responsibility to adhere to the law has been shifted onto parents eroding the procedural protections afforded to children by Congress. The District Court has not sufficiently reined-in this charade. The administrative hearing process has become an opportunity for Hawaii’s school system to attack parents in order to excuse its own neglect and unlawful actions. After this ruling, such unscrupulous behavior by the DOE will be hard to justify.

In this case, the DOE claimed that they had rescheduled an IEP meeting 3 times for 13 staff in order to accommodate the parent’s schedule. The Court ruled that, “[E]ven if the Department’s theory of the case was supported by the facts...”, it cannot shift its legal responsibility onto parents. This is what we hope to teach our children about individual responsibility. Maybe the DOE can be taught this same lesson if lower courts will listen carefully to the Appellate Court’s analysis.

Additionally, the Court held that Spencer Clark was denied Free Appropriate Public Education (FAPE) due to lost educational opportunity when the DOE failed to sufficiently discuss Spencer’s needs. The Court explained that “A procedural error results in the denial of an educational opportunity where, absent the error, there is a ‘strong likelihood’ that alternative educational possibilities for the student ‘would have been better considered’.” The Court further explained that “…an IEP team’s failure to properly consider an alternative educational plan can result in a lost educational opportunity even if the student cannot definitively demonstrate that his placement would have been different but for the procedural error. “

This case marks the beginning of end for the Hawaii Department of Education’s cynical reign over the rights of children. Blaming a special-needs child’s parents for the Department’s own neglect and unlawful actions can now be halted if attorneys object to this process at the administrative level of the action. If hearings officers allow the DOE’s attorneys to continue their antics by blaming parents or if the District Court fails to recognize the import of this case, the Ninth Circuit will continue to reverse their holdings.

---30—

Keith H. Seth Peck is a Hawaii attorney that works on behalf of families with special-needs children denied their rights by the Hawaii Department of Education. He has done scores of cases over the past 20 years, forcing the DOE to fund private programs and service that are vastly superior to what the DOE is required to provide by law. Mr. Peck is a fierce advocate for his clients. “When it comes to litigation, ‘experience matters’, and your attorney shouldn’t be a wuss.”